Imperative and Dispositive Models of Regulating Active Legal Capacity of Persons With Mental Disabilities

The aim of the article is to set the problem of the inconsistency of the updated norms of the RF Civil Code which determine the legal status of people with mental disorder with international standards, in particular with the Convention on the Rights of Persons with Disabilities, ratified by Russia in 2012. The basis of the article is the comparative method of legal research, since the aim is achieved by comparison of the provisions which determine the legal status of people with mental disorder in international law, in some jurisdictions that have brought their legislation in accordance with it (Estonia, Peru, Germany, France, Hungary), and in Russia. Two models of regulation of active legal capacity, conditionally called as imperative and dispositive ones, are studied in the article. The imperative model is typical for the Russian civil legislation which stipulates numerus clausus of legal statuses of a person, reflecting their ability to understand the meaning of their actions or to control them: a person with full active legal capacity; an incapacitated person (i.e. a person, deprived in their active legal capacity); and a person restricted in their active legal capacity. The core of the described imperative approach is that the law states the particular volume and content of active legal capacity, corresponding to each mentioned legal status of a person. Such an approach does not allow the court to be flexible in restricting the active legal capacity of a person with mental disorder taking into account the individual degree and character of decrease in a person's ability to understand the meaning of their actions or to control them. Meanwhile, the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity, are the backbone concepts for the legal regulation of these groups of relationship in many foreign countries. With such an approach, a person is recognized as having active legal capacity to the extent that they are not limited by the appropriate form of legal protection, and not vice versa as in the countries with the imperative model (e.g. Russia). While establishing the particular form of legal protection, the court is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of a particular person, to individually determine which actions a person can carry out independently and which one only with the help of a trustee. This approach can be described as a dispositive model of regulation of active legal capacity, which promotes the implementation of the principles of autonomy of individuals, flexibility in legal response, maximum preservation of capacity, proportionality of the application of protective measures to persons with mental disorder, declared in international law. The provided analysis of the imperative and dispositive models of regulation of active legal capacity of people with mental disorder helps to reveal the shortcomings of the relevant part of Russian civil legislation and to assess the appropriateness of borrowing the dispositive approach by the Russian legislator.

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